The Supreme Court Gave Democrats a Fighting Chance to Win Back the House

June 29, 2015

Thanks to gerrymandering, the “emerging Democratic majority"—if there even is one—will be largely powerless for the next five years. But on Monday, the Supreme Court decision in Arizona State Legislature v. Arizona Independent Redistricting Commission gave Democrats hope for the future, and provided reformers a path to end the inherent politicization of congressional redistricting for good.

In a 5-4 opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court ruled that the Elections Clause of the U.S. Constitution permitted Arizona voters, through a ballot initiative, to adopt an independent commission for the redistricting process. Ginsburg wrote in her opinion:

Invoking the Elections Clause, the Arizona Legislature instituted this lawsuit to disempower the State’s voters from serving as the legislative power for redistricting purposes. But the Clause surely was not adopted to diminish a State’s authority to determine its own lawmaking processes.

This decision is largely a positive for Democrats. With a historic number of state chambers currently in Republican hands, a decision going the other way in Arizona State Legislature would have allowed conservatives in that state to draw the districts however they liked, reducing even further the number of “swing seats” and firmly entrenching conservative rule of the House.

The redistricting process that followed the Republican wave in the 2010 midterms was one of the most cynical political maneuvers in recent history. Republicans in state legislatures in places like Pennsylvania and Ohio redrew post-census congressional districts into nonsensical formations. As a result, a Democratic president in 2016 would have almost no chance of working with a friendly House in their first term, even if they win in a landslide and carry with them a slim Senate majority.

The effects of that redistricting were noticeable in 2012 when, despite easily holding the White House, adding to their Senate majority, and winning the popular vote in the House by over 1 million votes, Democrats only won back eight congressional districts.

In Ohio, two longtime progressive members of Congress, Marcy Kaptur and Dennis Kucinich, were drawn into the same district, the boundaries of which are objectively ridiculous. After the 2012 election in Michigan, where Obama won by nearly ten points, Republicans held nine seats to just five for Democrats. And in Pennsylvania, the GOP picked up two seats despite Obama's winning the state by over 300,000 votes and Senator Bob Casey's winning re-election by an even wider margin. This process wasn’t limited to Republicans, either—they just had more opportunities to do it.

This has been a problem for nearly all of American history (the word “gerrymander” dates back to the early 1800s), but over the last few years, states have attempted to remedy it. The Arizona Independent Redistricting Commission, a board written into the Arizona constitution by voters in 2001 in order to remove legislators’ self-interest from the redistricting process, is one such fix. The five-commissioner board is non-partisan by design: party leadership in the state House and Senate choose two commissioners apiece. Those four commissioners then choose a registered independent to chair the board.

After the commission-drawn lines were put to the test in the 2012 election, critics claimed that the commissioners handling the process were too liberal, even with the three “swing districts” all registering close votes. In 2014, one of those districts—former Representative Gabrielle Giffords’ old seat—flipped back to the Republicans.

Now that the Arizona case has been settled, the Arizona Congressional districts will remain the same. A decision upholding the Arizona legislature's right to redistrict could have allowed Republicans to draw districts unfavorable to swing-seat Democratic representatives Ann Kirkpatrick and Kyrsten Sinema, and could have also pushed freshman Congresswoman Martha McSally into a solidly Republican seat after her district saw three races in a row decided by less than two percentage points, the last by just 167 votes.

The effects of the Arizona case aren’t just isolated to that state, either: California set up a similar system in 2010 that took redistricting power away from the legislatures. With the Arizona ruling, the Democratic legislature in California won’t have the authority to modify redistricting ahead of next year’s election. In addition to California and Arizona, Hawaii, Idaho, Montana, New Jersey, and Washington all have redistricting commissions. With the exception of the last, all are solidly red or blue states with one party in control of both chambers of the legislature.

If the Court had ruled that the commissions were unconstitutional, anti-gerrymandering advocates would have had few options left to fight the process. Former Supreme Court Justice John Paul Stevens wrote a book last year that called for a constitutional amendment to prevent targeted manipulation:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

This is a great idea to permanently prevent both parties from engaging in partisan redistricting, except that it requires passage and ratification by supermajorities of the very federal and state legislatures that draw and represent those districts (and are currently reaping the benefits of unchecked gerrymandering).

Another potential solution would cut humans out of the process altogether. A decade ago, the Center for Range Voting proposed a system which cut out all possible factors in redistricting apart from the shape of the state, the number of voters, and how many districts are needed. Similar to Stevens’s suggestion, though, it’s exceptionally hard to ask elected officials to cede redistricting power.

The creation of more independent redistricting boards is realistically the only way Democrats could have hoped to keep the few swing seats in Arizona they have left, and the Supreme Court decision is a huge positive for liberals. But long term, this decision will be seen as a win for states who set up independent boards, giving voters in at least a few states the opportunity to reduce gerrymandering and take the redistricting process out of the hands of partisan legislators.

Paul Blest is a writer and journalist based in Raleigh, North Carolina. His work has appeared at New Republic, VICE, Salon, and Indy Week.